Third-party defendant, State Farm Insurance Companies, and defendants/third-party plaintiffs, Charles T. Pecora, Thomas Pecora and Elizabeth M. Spano a/k/a Elizabeth M. Pecora move to vacate a judgment entered against them on or about May 8, 2007 as defective and/or payment was timely made pursuant to CPLR §5003-a.^[FN1]

It is undisputed the instant case settled on March 21, 2007 for a total of Three Hundred Twenty Thousand ($320,000.00) Dollars; Twenty-Five Thousand ($25,000.00) Dollars from Allstate Insurance Company on behalf of defendants Charles Pecora and Elizabeth M. Spano; and Two Hundred Ninety-Five Thousand ($295,000.00) Dollars from State Farm Insurance Companies on behalf of defendant Thomas Pecora. Plaintiffs prepared and served a Stipulation of Discontinuance and General Release on March 22, 2007. Upon receipt of same, defense [*2]counsel, DeSena & Sweeney, LLP, requested a revised Hold Harmless Agreement to include their firm which plaintiffs served on April 20, 2007.

Plaintiffs' counsel concedes the Allstate check for Twenty-Five Thousand ($25,000.00) Dollars dated May 1, 2007 was received on May 9, 2007. The State Farm check dated April 25, 2007 for Two Hundred Ninety-Five Thousand ($295,000.00) Dollars was apparently mailed to the wrong address and was returned to State Farm on May 7, 2007 and then re-mailed to plaintiffs and received on May 10, 2007.

Prior to receipt of the above checks, plaintiff served the defendants and third-party defendant with a judgment on or about May 8, 2007. Said judgment was for the full amount settled, i.e. Three

Hundred Twenty-Thousand ($320,000.00) Dollars, against both the defendants and third-party defendant, State Farm Insurance Companies, instead of the specific amounts settled for. It is plaintiffs' attorney's contention that he gratuitously agreed to amend the Hold Harmless Agreement at third-party defendant's request on April 20, 2007, however, payment was already nine (9) days late and that his amending the Hold Harmless Agreement should not extend the defendants' and third-parties' time to make payment. Furthermore, Hold Harmless Agreements are not even mentioned in CPLR §5003-a.

It is the third-party defendant, State Farm Insurance Companies' position that the twenty-one (21) day time frame pursuant to CPLR §5003-a(g), does not start until the Release and Stipulation of Discontinuance were received, not when they were mailed, citing Johnson v Karavassilis, 2 Misc 3d 341 (Supreme Court, Kings County 2003). This court disagrees with this argument in that

the language in CPLR §5003-a is straight forward and unambiguous, and it has been specifically held that "payment under the statute is measured upon mailing, not receipt...." (see Rogers v State, 14 Misc 3d 1215, where tender was made by certified mail return receipt requested).

§5003-a prompt payment following settlement:

(a)When an action to recover damages has been settled, any settling defendant, ... shall pay all sums due to any settling plaintiff within twenty-one days of tender ... of a duly executed release and stipulation discontinuing action ...

(e)In the event that a settling defendant fails to promptly pay all sums as required ... any unpaid plaintiff may enter judgment... The judgment shall be the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date of the release and stipulation discontinuing action were tendered.

(g)The term "tender" as used herein shall mean either to personally deliver or to mail, by registered or certified mail, return receipt requested. (emphasis supplied).

After a thorough review of the papers submitted, it appears the plaintiffs have failed to prove they tendered the executed Release and Stipulation of Discontinue in accordance with CPLR §5003-a(g). (see Rogers v State, supra). The plaintiffs have failed to submit proof that their executed Release and Stipulation of Discontinuance were served either by personal delivery or by registered or certified mail on defendants and third-party defendant. [*3]

Accordingly, without proof of a proper tender by plaintiffs, the twenty-one (21) day time frame has not commenced and, therefore, defendants' and third-party defendant's settlement payments cannot be considered untimely.

Accordingly, the court is compelled to grant the defendants' and third-party defendant's motions finding that the plaintiffs are not entitled to interest, costs or disbursements in this action.

The plaintiffs' motion is denied.

This shall constitute the decision and order of the Court.

E N T E R ,

s/ Philip G. Minardo

J.S.C.